Chattisgarh High Court
Brij Lal Gond vs State Of Chhattisgarh on 9 September, 2017
Author: Pritinker Diwaker
Bench: Thottathil B. Radhakrishnan, Pritinker Diwaker
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 731 of 2012
{Arising out of judgment dated 18.07.2012 in Sessions Trial No. 01 of 2011 by
the learned Sessions Judge, Rajnandgaon}
Brij Lal Gond s/o Jivanu Ram aged about 45 years, R/o village Parvidih,
Police Station Mohala, District Rajanandgaon, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through: Station House Officer, Police Station
Mohala, District Rajanandgaon, Chhattisgarh.
---- Respondent
For Appellant : Shri G.P.Kurre, Advocate.
For Respondent : Shri V.A.Goverdhan, Panel Lawyer
Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice
Hon'ble Shri Pritinker Diwaker, Judge
Judgment on Board
Per Pritinker Diwaker, J.
09/09/2017
1. This appeal by the accused is directed against the judgment and order dated 18.07.2012 passed by the learned Sessions Judge, Rajnandgaon in Sessions Trial No. 01 of 2011. Vide the said judgment, the accused-appellant has been convicted of having committed offences punishable under Section 302/149 of the Indian Penal Code (for short 'the IPC') on two counts and Section 148 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 5000/- on two counts with default stipulation and to undergo rigorous imprisonment for two years, respectively.
2. The prosecution story, briefly stated, is that about 25 naxalites came to village Parvidih and took the two deceased persons, namely, Mangiya Ram and Bisram alongwith them suspecting them to be the informers of the police. On 12.07.2010, a message was sent by the naxalites to the villagers through the accused-appellants calling them to attend a meeting near village Parvidih and it is 2 stated that number of villagers had gone there. In the said meeting, both Mangiya Ram and Bishram were alleged to have been beaten by the naxalites including the appellant and later their dead bodies were found on Parvidih-Kotuljhora road on 12.07.2010. First information report (Exhibit P/15) was lodged on 13.07.2010 by Mahnu Ram Lohar (PW-3), brother of deceased Mangiya Ram against 12-13 named persons and 10-12 others under Sections 147, 148, 149 and 302 IPC. Merg intimation (Exhibit P-16) in respect of deceased Mangiya Ram and merg intimation (Exhibit P-17) in respect of Bishram was recorded on 13.07.2010. Inquest on the body of deceased Mangiya Ram (Exhibit P-6A) and on the body of Bishram (Exhibit P-5A) was conducted on 13.07.2010. Both the dead bodies were sent for postmortem, which was conducted on 14.07.2010 by Dr. S.R.Mandawi (PW-15). Postmortem report of deceased Mangiya Ram is Exhibit P-19A whereas the postmortem report of Bishram is Exhibit P-18A. The cause of death of both the deceased was throttling due to asphyxia.
3. While framing the charges, the learned trial Judge framed the charges against the accused under Sections 147/149, 148/149, 302/149 of the IPC, Section 25(1)(b) of the Arms Act, Section 3 and 5 of the Explosive Substances Act and Section 15(1)(ii) and Section 16 of the Unlawful Activities (Prevention) Act, 1967.
4. So as to hold the accused-appellant guilty, the prosecution examined 15 witnesses in all. The statement of the accused was also recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the prosecution, pleaded innocence and false implication.
5. The learned Trial Court, after hearing the counsel for the parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused appellant, as mentioned above.
6. Learned counsel for the appellant submits:
(i) That, in the FIR lodged by Mahanu Ram (PW-3), name of the appellant is not mentioned. Likewise, in the case diary statement of Sukay Bai (PW-11), the so-called eye-witness which was recorded 3 on 14.07.2010, there is no mention of name of the appellant and for the first time, name of the accused-appellant finds figure in the case diary statement of Sukay Bai (PW-11) recorded on 23.09.2010.
(ii) That, the appellant has not been charged under Section 120-B of the IPC.
(iii) That, even if the entire prosecution case is taken as it is, the appellant could not have been convicted with the aid of Section 149 IPC.
(iv) That, there is no legally admissible evidence on record to convict the appellant.
(v) The appellant is in jail since 25.09.2010 and therefore, he be set free.
7. On the other hand, learned counsel for the State supporting the judgment impugned, argued that the conviction of the appellant is in accordance with law and there is no infirmity in the same warranting any interference by this Court.
8. We have heard learned counsel for the respective parties and perused the evidence on record.
9. Jitendra Singh Meena (PW-1) is the Additional Superintendent of Police, who did initial part of the investigation. Son Sai (PW-2), Mahanu Ram, (PW-3), Chheraku Ram (PW-4), Aghan Singh (PW-5) and Nag Sai (PW-8) have turned hostile and not supported the prosecution case. Shubhankar Malakar (PW-6) is the Patwari who prepared the spot map (Exhibit P-9). Malikram (PW-7) is the Head Constable who assisted in the investigation. Maansingh (PW-9) is a witness of memorandum (Exhibit P-1) and seizure memo (Exhibit P-2).
10. Sukay Bai (PW-11) is the main prosecution witness. She has stated that on the date of incident at about 9.00am about 20 - 25 naxalites came to her house and made certain enquiries from her brother Bishram. Thereafter, they enquired about other deceased Mangiya Ram. They called Mangiya Ram from his house and came to her house again. She has stated that both Mangiya Ram and 4 Bishram were taken by the naxalites along with them to the jungle. She has stated that she could identify two of the naxalites, namely, Udhan and Diwakar, who were carrying guns with them and were in the naxalite uniform. She has stated that the accused/ appellant was also in the naxal party. After leaving her brother into the jungle, the accused/ appellant returned back and informed her that both Mangiya Ram and Bishram are in the jungle and are taking their food and would return in the afternoon. When, by evening, both Mangiya Ram and Bishram did not return, she had gone to the village Patel and enquired about them where she was informed that a village meeting is likely to be convened on the next morning. In the meeting, all the villagers had gone there where both Mangiya Ram and Bishram were also present. Their hands were tied by the naxalites. She has stated that after making some enquiry, her brother was beaten by the naxalites by a club and the accused/ appellant also caused club injuries to him. She has further stated that after the meeting, she returned back and she was assured that her brother would return in the evening. This witness states that on the same day, the dead bodies of the deceased were found about 1 km away from the village. Here it is relevant to mention that in her 161 CrPC statement recorded on 14.07.2010 she had not disclosed the name of the appellant amongst the naxalite party and for the first time in her supplementary statement dated 23.09.2010, she had disclosed name of the appellant. Even in the First Information Report lodged by Mahanu Ram (PW-3), name of the accused/ appellant is not there.
11. Ram Bai (PW-12) has not stated anything specific against the appellant. Birbal Tulavi (PW-13), is the ASI, who assisted in the investigation. Yuvraj Deshmukh (PW-14) is the Assistant Sub Inspector of Police, who did the investigation in the matter. Dr. S.R.Mandavi (PW-15) is the Doctor who conducted the postmortem on the bodies of two deceased vide Exhibit P-19A and Exhibit P-18A.
12. Close scrutiny of the evidence makes it clear that but for the statement of Sukay Bai (PW-11) implicating the appellant assigning the role, there is no other 5 evidence against him. The Court statement of Sukay Bai (PW-11) becomes doubtful because in her first statement recorded under Section 161 CrPC on 14.07.2010, she had not disclosed the name of the appellant and later when her subsequent statement was recorded on 23.09.2010, she had assigned some role to the appellant. Had the appellant known to this witness and was involved in the commission of offence, certainly in her first statement itself she would have disclosed his name. Considering the improved statement of Sukay Bai (PW-11), the possibility cannot be ruled out that the same is nothing but an after thought and after placing reliance on such statement, the conviction cannot be upheld. Likewise, in the First Information Report (Exhibit P-15) also, there is no mention of the appellant's name. It is also apparent that even if the entire prosecution case is taken as it is, the appellant could not have been convicted with the aid of Section 149 IPC.
13. Thus, considering the evidence collected by the prosecution, this Court is of the opinion that conviction of the accused/appellant under Sections 148, 302/149 and 302/149 of IPC is not based on due appreciation of evidence available on record and that being so, he is entitled for benefit of doubt.
14. In view of the above discussion, we are of the view that the learned trial Court totally misdirected itself in convicting the accused/appellant. The judgment dated 18.07.2012 passed in Sessions Trial No. 01 of 2011 by the learned Sessions Judge, Rajnandgaon, is set aside and the accused/appellant is acquitted of the charges. He be set at liberty forthwith, if not required in any other case, subject to the provisions contained in Section 437-A of the CrPC.
15. The appeal is allowed.
Sd/- Sd/-
(Thottathil B. Radhakrishnan) (Pritinker Diwaker)
CHIEF JUSTICE JUDGE
Subbu